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DOJ: We can force you to decrypt that laptop
CNET News ^ | JULY 11, 2011 12:07 AM PDT | Declan McCullagh

Posted on 07/11/2011 10:39:22 AM PDT by Smogger

The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase. The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution's Fifth Amendment, which broadly protects Americans' right to remain silent.

In a brief filed last Friday, Fricosu's Colorado Springs-based attorney, Philip Dubois, said defendants can't be constitutionally obligated to help the government interpret their files. "If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?"

...

"Decrypting the data on the laptop can be, in and of itself, a testimonial act--revealing control over a computer and the files on it," said EFF Senior staff attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."

(Excerpt) Read more at news.cnet.com ...


TOPICS: Crime/Corruption; Front Page News; News/Current Events; Technical
KEYWORDS: 5thamendment; constitution; doj; encryption; fifthamendment; patriotact; policestate
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A couple of thoughts: I agree with EFF that merely entering a password into a computer is testimony in that you are testifying that you have access to and/or control over it. Secondly, obviously, if whatever was on the device was highly incriminating then I would take the contempt charge. Finally, how can the prosecutor prove that that haven't merely misplaced or forgotten the password?
1 posted on 07/11/2011 10:39:29 AM PDT by Smogger
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To: Squantos
"ahem"... and what if it's not possible to decrypt it? :-)
2 posted on 07/11/2011 10:41:34 AM PDT by hiredhand
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To: Smogger

Hey stupids at the DOJ: thanks for letting the world know the limitations of the NSA’s decryption capabilities.


3 posted on 07/11/2011 10:41:57 AM PDT by Steely Tom (Obama goes on long after the thrill of Obama is gone)
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To: Smogger
If you invent a new written language that only you understand, the US Department of Justice can force you to teach them the new language so that they can decipher your hieroglyphics to use against you in a court of law.

Now, if you'll excuse them, the US Department of Justice has thousands of military weapons to give to the Mexican narco-trafficking cartels.

4 posted on 07/11/2011 10:43:10 AM PDT by The KG9 Kid
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To: Smogger

I don’t recall worked great for Hillary Clinton!


5 posted on 07/11/2011 10:44:22 AM PDT by Enterprise ("Those who can make you believe absurdities can make you commit atrocities." Voltaire)
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To: Steely Tom

Everyone who knows about encryption know that there are limits to cryptographic attacks, even the NSA’s. And whose to say the government is going to utilize NSA resources on every two- bit criminal with an encrypted hard drive? I would assume they are NOT going to.


6 posted on 07/11/2011 10:46:24 AM PDT by Smogger
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To: Smogger

Need a whole disk encryption system that allows you to enter two passwords.

One password reveals the real stuff. Another password reveals the fake stuff while it deletes and rewrites random data over the real stuff.

But then that would be tampering with evidence or some other charge. So best to just take the 5th and stay quiet.

This will be an interesting case. What happens if they give you immunity to compel your testimony that the password you provided won’t be used to prove you had access to the machine? They could force your testimony then, no?


7 posted on 07/11/2011 10:46:35 AM PDT by for-q-clinton (If at first you don't succeed keep on sucking until you do succeed)
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To: Smogger
In addition to a password that decrypts the computer, there should be one that zeroizes it.
8 posted on 07/11/2011 10:47:46 AM PDT by Doe Eyes
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To: Smogger; Steely Tom
Two words:

I FORGOT..............Steve Martin................

9 posted on 07/11/2011 10:48:45 AM PDT by Red Badger (Casey Anthony: "Surprise, surprise."...............)
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To: for-q-clinton

I must have read your mind.


10 posted on 07/11/2011 10:49:04 AM PDT by Doe Eyes
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To: Steely Tom
I did not see anywhere in the article that NSA had even been asked to decrypt the contents of the hard disk, much less the fact that they couldn't.

I don't think this says anything one way or the other about NSA's abilities in this arena.

Personally, I wouldn't bet against NSA.

Garde la Foi, mes amis! Nous nous sommes les sauveurs de la République! Maintenant et Toujours!
(Keep the Faith, my friends! We are the saviors of the Republic! Now and Forever!)

LonePalm, le Républicain du verre cassé (The Broken Glass Republican)

11 posted on 07/11/2011 10:49:21 AM PDT by LonePalm (Commander and Chef)
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To: Enterprise

I agree. Was Hitlery ever jailed for having a “poor memory?” I’d say it worked fine. She’s still sucking at the public teat.


12 posted on 07/11/2011 10:49:50 AM PDT by jonascord (The Drug War Rapes the Constitution.)
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To: Smogger

I’m surprised there haven’t been more of these cases, but then I’m surprised more people don’t take measures to protect their data both in terms of backup and security.

Clearly falls under the Fifth Amendment (assuming we still have one). Legal types will get hung up on what and what doesn’t constitute ‘testimony’ but the Fifth, of course, deals with bearing witness against oneself in or out of court.

I suppose the best defense for anyone in this spot is to simply say ‘I forget the password. I guess we’re both screwed.’


13 posted on 07/11/2011 10:50:12 AM PDT by relictele (Pax Quaeritur Bello)
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To: for-q-clinton

There is already such a thing, and I use it. It’s called a hidden volume, and allows you to enter a password under duress the decrypts only what you want the people strong arming you to see.


14 posted on 07/11/2011 10:51:43 AM PDT by Smogger
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To: jonascord

I think the last person the Government jailed for having a poor memory was Scooter Libby. But, had he simply not talked, he would never have been convicted.


15 posted on 07/11/2011 10:51:43 AM PDT by Enterprise ("Those who can make you believe absurdities can make you commit atrocities." Voltaire)
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To: Red Badger

‘I forgot’ armed robbery was illegal!


16 posted on 07/11/2011 10:52:21 AM PDT by DTogo (High time to bring back the Sons of Liberty !!)
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To: Smogger
DOJ: We can force you to decrypt that laptop

Ummmm.
No you can't.

You gonna bring back the rack?
The Iron maiden?
Drawing and quartering?
Water boarding that is prohibited from being used on mortal enemies?

Good luck with that.

17 posted on 07/11/2011 10:54:06 AM PDT by Publius6961 (My world was lovely, until it was taken over by parasites.)
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To: Smogger

But it doesn’t delete the stuff you want to hide, does it?

I guess 3 passwords would be best.

1) Just show fake stuff
2) Show real stuff
3) Show fake stuff and delete real stuff


18 posted on 07/11/2011 10:54:21 AM PDT by for-q-clinton (If at first you don't succeed keep on sucking until you do succeed)
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To: The KG9 Kid

Yeah...what you said!


19 posted on 07/11/2011 10:54:57 AM PDT by WKUHilltopper (And yet...we continue to tolerate this crap...)
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To: Smogger

“The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.”

Maybe she can say:

“My lawyer and I will gladly submit any questions you have for my laptop computer, and question by question, under my lawyers advice we will make my laptop computer answer any question that will not violate my Fifth Amendment rights. But no, we will not allow you to interrogate my laptop with any lower standard with which you are not allowed to interrogate me.”

Just trying to speak in “legalese” even though I am not totally convinced of that argument myself.


20 posted on 07/11/2011 10:57:12 AM PDT by Wuli
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To: for-q-clinton

If you’re really paranoid that is the way to do it. I haven’t yet, but maybe someday. I just use truecrypt full disk now, but I guess I can setup a hidden and fake OS in there. Truecrypt calls it ‘plausible deniability’. Well, it’s a part of that whole idea they have.


21 posted on 07/11/2011 10:57:17 AM PDT by Tolsti2
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To: Smogger

A few years back I used truecrypt to set up an encrypted drive on my computer to store tax returns, scanned receipts etc. Following the recommendations from the truecrypt instructions I set up a long password (more like a pass paragraph) with upper and lower case letter, numbers and symbols. Worked fine for a couple months, until I fell behind with my receipt scanning and didn’t mess with it for a few weeks, then of course I forgot the password and couldn’t find where I had written it down. So long story short, hours of work down the crapper. I guess if my computer had been confiscated by the feds, I could also be facing jail time for not being able to produce the password. That sure would add insult to injury...


22 posted on 07/11/2011 10:58:13 AM PDT by apillar
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To: Smogger
I see a market for a disk encryption product that has two passwords. One that decrypts. One that wipes. When forced to give a password, give the one that wipes the data. Oops. Sorry. All gone.
23 posted on 07/11/2011 10:59:35 AM PDT by Myrddin
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To: Smogger

I find this outrageous - there’s no clearer example of self-incrimination short of being compelled a gunpoint to say, “Yeah, I did it” and sign a “confession.”

Of course, one could always have an encryption program that wipes the hard drive if you enter the password incorrectly X number of times (3 or 5 or 10). One could fail to capitalize a letter, or get “fat fingers” or whatever...and good-bye data.

Your reminder of the simple Hillary Clinton defense of “I don’t recall” is a big winner - because they cannot prove otherwise, just as no one could prove that “the world’s smartest woman” remembered none of the multitude of details of what she was being questioned about. They could be very suspicious, but never prove a thing.

I don’t advocate breaking the law (even if the law is violative of the Constitution, as it often is). However, certain parts of the Constitution’s protections of our rights must be inviolate or we are dealing with nothing less than an outright dictatorship. The 5th Amendment protection against self-incrimination is one such. The data on a computer is certainly capable of incriminating a person - hence the reason the DOJ wants to see it - and being compelled to release it CANNOT be permitted. I, too, would rather be in jail on contempt than to release the information. Besides, I don’t put it past prosecutors to falsify what is there to suit their case (evidence tampering is not exactly a new concept), but they can’t do it if they haven’t had access to the data in the first place.


24 posted on 07/11/2011 10:59:52 AM PDT by Ancesthntr (Bibi to Odumbo: Its not going to happen.)
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To: Publius6961

” You gonna bring back the rack?
The Iron maiden?
Drawing and quartering?
Water boarding that is prohibited from being used on mortal enemies? “

Ummmm...

http://www.freerepublic.com/focus/f-news/2746859/posts

“”VIDEO - Handcuffed man repeatedly kicked, beaten, and tasered by police while in handcuffs””

Just sayin’.....


25 posted on 07/11/2011 11:00:40 AM PDT by Uncle Ike (Rope is cheap, and there are lots of trees...)
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To: Smogger

If this was in a book in a foreign language the DOJ would have to hire an interpriter.


26 posted on 07/11/2011 11:01:11 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: Smogger

When the Feds show up at your house with a search warrant, they can compel your cooperation in unlocking doors and opening safes and such. Demanding a laptop password is little different.


27 posted on 07/11/2011 11:01:50 AM PDT by Rockingham
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To: for-q-clinton

“3) Show fake stuff and delete real stuff”

The problem here is that it’s very complicated to fully erase data from a hard drive so that it cant be reconstructed. Even writing over it does not do the job, as per the DOD.

A better answer would be to simply keep sensitive data on a thumb drive. You can over write that, or you can simply physically destroy it.


28 posted on 07/11/2011 11:02:20 AM PDT by babygene (Figures don't lie, but liars can figure...)
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To: for-q-clinton
GMTA. I should have read all the other comments before offering my own. Seems we are all thinking along that line.
29 posted on 07/11/2011 11:03:15 AM PDT by Myrddin
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To: Enterprise
I think the last person the Government jailed for having a poor memory was Scooter Libby. But, had he simply not talked, he would never have been convicted.

You seem to have missed the crucial fundamental question :

Why is it not unconstitutional to selectively enforce a potentially criminal law?

Why were not he First Rapist and his feloneous wife (800 FBI files) also jailed for having really really poor memories?

30 posted on 07/11/2011 11:04:02 AM PDT by Publius6961 (My world was lovely, until it was taken over by parasites.)
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To: Myrddin

Type the blue font password, or the red font pass word...


31 posted on 07/11/2011 11:04:24 AM PDT by gov_bean_ counter (JMO but I reserve the right to be wrong...)
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To: Tolsti2

My first response after they found the laptop would be:”Where the hell did that come from?”


32 posted on 07/11/2011 11:04:28 AM PDT by sniper63 (Ever wonder why they call themselves Hamas, but don't eat pork?)
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To: Smogger

Did I read the article correctly to see that the laptop encryption was done with PGP?


33 posted on 07/11/2011 11:04:44 AM PDT by jimjohn
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To: for-q-clinton
But it doesn’t delete the stuff you want to hide, does it? I guess 3 passwords would be best. 1) Just show fake stuff 2) Show real stuff 3) Show fake stuff and delete real stuff

#3 might make sense for life-or-death data, but in general, the real key is to make #1 look good and protected enough, and to not leave any trace of #2 being there at all (e.g., hidden via steganography).

So, under duress, I might "reluctantly" provide my password which will "expose" some tax documents or other bank records and some... er... "blue" media files that I didn't want the Mrs. to know about.

Meanwhile, the real critical data is hidden (but still encrypted) in plain sight.

34 posted on 07/11/2011 11:06:38 AM PDT by kevkrom (Imagine if the media spent 1/10 the effort vetting Obama as they've used against Palin.)
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To: Smogger

I think I’ll set my encryption password to be “F-off, you DOJ Obambot monkeyslime. You can KMA if you think I am going to give you my password.” And I think I will have a case for wrongful imprisonment...


35 posted on 07/11/2011 11:07:27 AM PDT by kosciusko51
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To: Smogger
Let's see I'm facing 30 years in the federal pen for Fraud or 6 months on a contempt of court citation for not providing my encryption password.. Uhh yeah, that's a tough decision.
36 posted on 07/11/2011 11:07:58 AM PDT by apillar
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To: Smogger
"Ok, Ok, the code is..... 1....2....3....4....5"

"Hey! That's the same code I use on my luggage!"
37 posted on 07/11/2011 11:07:58 AM PDT by Daus
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To: Rockingham

“When the Feds show up at your house with a search warrant, they can compel your cooperation in unlocking doors and opening safes and such. Demanding a laptop password is little different.”

They can “compel and demand” all they want. They still can’t make you do it. Opening the door keeps them from breaking it down or cutting open a safe. Demanding a password is not the same.


38 posted on 07/11/2011 11:08:02 AM PDT by babygene (Figures don't lie, but liars can figure...)
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To: Myrddin
I see a market for a disk encryption product that has two passwords. One that decrypts. One that wipes. When forced to give a password, give the one that wipes the data. Oops. Sorry. All gone.

Oh, no problem...we have a backup of it. Try again.

39 posted on 07/11/2011 11:08:27 AM PDT by Gondring (Paul Revere would have been flamed as a naysayer troll and told to go back to Boston.)
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To: Uncle Ike

Can’t be, those against Gitmo would be up in arms if such things were happening to suspects held in American’s jail cells. < /sarc >


40 posted on 07/11/2011 11:09:22 AM PDT by a fool in paradise (Ask Barack Obama this election if he believes Jesus Christ rose from the dead and walked among men.)
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To: Smogger

Hey they can force you to buy health insurance. Why not reveal a password?


41 posted on 07/11/2011 11:10:58 AM PDT by neodad (Don't Tap, Just Drill!)
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To: Smogger
My password? Oh dear what was that. Try 'youscumsuckingfaggotswillneverguessit' . Nope, that's not it.

Ah, I have it... 'youwankerscouldntcatchtheclapinawhorehouse'. Nope, that's not it either. Try...

42 posted on 07/11/2011 11:11:06 AM PDT by Ken H
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To: Smogger
United States v. Boucher
43 posted on 07/11/2011 11:11:57 AM PDT by Palter (Celebrate diversity .22, .223, .25, 9mm, .32 .357, 10mm, .44, .45, .500)
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To: Doe Eyes
In addition to a password that decrypts the computer, there should be one that zeroizes it.

Any intelligent investigator will make an image copy of the hard drive before doing anything else.

44 posted on 07/11/2011 11:16:12 AM PDT by PapaBear3625 (In the land of the pigs, the butcher is king.)
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To: Daus
I know I am contributing nothing... but this always cracks me up... :)

1.2.3.4.5
45 posted on 07/11/2011 11:16:18 AM PDT by Daus
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To: Smogger

“I don’t recall (the password).”


46 posted on 07/11/2011 11:16:25 AM PDT by E. Pluribus Unum ("A society of sheep must in time beget a government of wolves." - Bertrand de Jouvenel des Ursins)
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To: babygene

Actually it is possible. You just have to write over the data several times. I’ve seen the technique used to get the old data under it and severas writes (It used to be like 7) and no way you’re getting the data back.

Also keep in mind the data is encrypted! So they’d first have to recover what was there...then decrypt it! Good luck with that.


47 posted on 07/11/2011 11:17:28 AM PDT by for-q-clinton (If at first you don't succeed keep on sucking until you do succeed)
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To: Doe Eyes

You always buy Evidence Eliminator, or something similar.


48 posted on 07/11/2011 11:18:09 AM PDT by chesley (Eat what you want, and die like a man.)
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To: Rockingham

If you forget the password to your safe they will just break it open. They can’t “compel” your further then say asking you nicely. You can’t break open encryption like that.


49 posted on 07/11/2011 11:18:13 AM PDT by Smogger
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To: Smogger
There ought to be encryption programs with TWO passwords.

One password lets you in.

The other password shreds the data.

And once you enter the "shred" password, it's too late.

50 posted on 07/11/2011 11:18:14 AM PDT by E. Pluribus Unum ("A society of sheep must in time beget a government of wolves." - Bertrand de Jouvenel des Ursins)
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